Is Your Ballot Selfie Legal?

Two years ago, pop star Justin Timberlake posted a photo of his 2016 election ballot—and ushered in a wave of warnings about the potential dangers of snapping pics in the voting booth. Back then, “ballot selfies” were definitely illegal in 19 states and potentially illegal in 11 others, according to an Associated Press analysis. But some things have changed since then.

Last year, laws legalizing ballot selfies took effect in two states. Residents of California and Colorado are now in the clear.

Lawmakers in several other states attempted to legalize ballot selfies but were unsuccessful. In Oklahoma, for instance, a bill passed both chambers of the legislature but was vetoed by Gov. Mary Fallin. Elsewhere, such as Illinois and New Jersey, legislation simply stalled.

Meanwhile, several lawsuits concerning ballot-selfie bans are still winding their way through federal courts. Joel Crookston of Michigan, for example, sued to stop his state’s ballot-selfie ban in 2016.

“Is this the most important free speech case under the sun? No,” Crookston’s lawyer, Stephen Klein, tells the AP. “But it’s a simple act that allows people to be involved in the electoral process. It’s not a threat to democracy. It’s a celebration.”

The rationales for the bans vary, but they generally relate to fears about voter intimidation and vote selling. “Photographing a marked ballot is illegal in part because such photographs could be used as proof of a vote for a particular candidate in a vote-buying scheme,” explains the North Carolina State Board of Elections & Ethics Enforcement.

The severity of the crime varies wildly by state. In Tennessee, where Timblerlake voted two years ago, taking a ballot selfie is a misdemeanor punishable by up to 30 days in jail and a $50 fine. In Illinois, it’s a class four felony, punishable by up to three years in prison and a fine of up to $25,000.

In Ohio, taking photos of completed ballots is also a felony. Yet the Cincinnati Enquirer tells readers that while “legally” ballot selfies are a no, “practically, no one is going to stop you….[T]here are no records of Ohio police ever enforcing the prohibition.” It seems Ohio is one of several states (including its western neighbor, Indiana) where the current legal status of ballot selfies is murky.

Ohio’s law against photographing ballots was passed in 1997; in other states, various statutes used to ban ballot selfies (under a more general ballot-privacy rubric) are much older. New Hampshire became the first state to add a more modern twist to these rules in 2014.

“Like many states, New Hampshire already prohibited voters from disclosing their marked ballot,” notes the National Conference of State Legislatures (NCSL). “The 2014 legislation (HB 366) took it a step further by explicitly prohibiting voters from taking a digital image of a marked ballot and distributing or sharing it on social media.”

A federal court would soon strike down the New Hampshire law as an unconstitutional restriction on free speech. “The court concluded that the ballot selfie is constitutionally protected political speech that can be restricted only by meeting the highest standard of constitutional scrutiny,” the NCSL reports.

And the U.S. First Circuit Court of Appeals upheld the lower court ruling, saying banning ballot selfies to stop voter fraud was like “burning down the house to roast the pig.” New Hampshire officials appealed to the U.S. Supreme Court, but SCOTUS declined to hear the case.

Not every federal court concurs. Last year a federal judge in Manhattan permitted a New York law banning ballot selfies.

CNN just released a state-by-state breakdown of ballot selfie laws—but beware. At least several states seem to be listed incorrectly:

• Iowa is included in CNN’s “don’t even think about it” category, but the secretary of state’s office there recently said, explicitly, “yes, you can take a ballot selfie.”
• Oklahoma is listed as a gray-area state, but its governor just vetoed a law legalizing ballot selfies.

As far as I can tell, ballot-selfie bans of some sort persist for at least 18 states in 2018: Alabama, Alaska, Florida, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, South Carolina, South Dakota, Tennessee, Texas, and Utah. In some of these states, taking photographs anywhere within or near a polling site is illegal; others permit pictures inside voting booths and pictures of blank ballots but not ballots that have been completed.

At least 19 states (and D.C.) allow pictures inside polling stations regardless of whether a ballot has been filled out yet. These include California, Colorado, Hawaii, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Montana, Nebraska, New Hampshire, New Mexico, Oregon, Pennsylvania, Vermont, Virginia, Washington, Wisconsin, and Wyoming.